Richard C. Bartel, Appellant,
Bank Of America Corporation, Appellee.
February 27, 2018
from the Superior Court of the District of Columbia
(CAB-5798-13) (Hon. John M. Campbell, Motion Judge)
Matthew August LeFande for appellant.
M. Ross for appellee.
Blackburne-Rigsby, Chief Judge, and Glickman and Beckwith,
BECKWITH, ASSOCIATE JUDGE.
than twenty years ago, appellant Richard Bartel purchased a
cashier's check for $30, 761.00, made payable to
"Dana McKinley or Edna McKinley or Richard Bartel,"
and left the check in the McKinleys' safe with the hope
that it would serve as consideration for a business
transaction that never came to fruition. When Mr. Bartel
sought to recover the check over a decade later, it had
vanished from the safe, both of the McKinleys had died, and
neither Mr. Bartel nor the issuing bank had any record of
where the check might have gone. Mr. Bartel filed suit
against appellee Bank of America Corporation to enforce his
claim for the value of the missing check.
Mr. Bartel's second appeal from the trial court's
grant of summary judgment to Bank of America. On remand after
the first appeal, the trial court granted summary judgment
again, finding that Mr. Bartel's claims were barred by
laches, that he failed to satisfy two separate statutes
governing the enforcement of a lost or stolen cashier's
check, and that his sworn declaration of loss was
insufficient. Mr. Bartel challenges each of the trial
court's findings. We conclude that because Mr. Bartel
"transferred" the cashier's check when he made
it payable to the McKinleys and then left it in their
possession, he is now precluded from enforcing his statutory
claim for the missing instrument.
trial court, the parties alleged the following during
discovery and in support of their summary judgment filings.
In 1994, Richard Bartel purchased a cashier's check in
the amount of $30, 761.00 from Bank of America's
predecessor in interest, NationsBank of Maryland, N.A. The
check was payable to "Dana McKinley or Edna McKinley or
Richard Bartel." The bank issued the check to Mr. Bartel
and shortly after, according to Mr. Bartel, he and Dana
McKinley placed the check in the McKinleys' safe. Mr.
Bartel intended the check to serve as consideration for a
contemplated business transaction with the McKinleys.
Specifically, Mr. Bartel hoped that the McKinleys would sell
their shares of a company of which Mr. Bartel was a majority
shareholder—though he had "no specific reason to
believe they would do so." After the McKinleys declined
to consummate the hoped-for business transaction, Mr. Bartel
left the check with Dana McKinley anyway on the chance that
they would come to an agreement later.
Bartel has not seen the check since he left it with the
McKinleys in 1994. At some point, he reached out to the
McKinleys to inquire about the check. According to Mr.
Bartel, Dana McKinley informed him that he had not
"touched or moved the check" but that he had
"seen it on multiple occasions." Mr. McKinley
added, however, that "he could not open the safe because
he had fumbled a change in the safe combination, or
alternatively, that his [g]uardian had changed the
combination." Mr. McKinley's guardian was appointed
in 2008 because Mr. McKinley was suffering from a
deteriorating mental illness. Mr. McKinley's mother Edna
McKinley died that same year, at which point she was
"blind, over eighty years of age[, ] and immobile."
Although Mr. Bartel alleges that Mr. McKinley told him that
he never moved the check, there is no indication in the
record that Edna McKinley made any equivalent representation.
Mr. Bartel stated in a 2008 email that Rene McKinley, who was
Dana McKinley's sister and Edna's daughter, had
access to the safe at one point after receiving the
combination from a family friend.
2009, Mr. Bartel filed an action in Florida, where the
McKinleys had lived, to obtain possession of the check. When
the safe was eventually drilled open, the check was not found
inside. Mr. Bartel later learned, from an inventory of
Dana's and Edna's estates, that there was no record
of a deposit into either of their accounts other than
ordinary pension deposits. Mr. Bartel asked Bank of America
to run a search for records relating to the check. A
representative of the bank responded that there was no record
of escheatment to the State of Maryland (where the check was
issued) and no record of the check as unclaimed property in
Bartel submitted what he titled a "declaration of
loss" of the check to Bank of America in 2013,
requesting payment. In that declaration, he asserted that no
payment of the check had ever occurred and that the original
instrument had been lost. He attached a photocopy of the
original check, emblazoned with the words
"copy—not negotiable." The bank replied that
it could not honor his demand for payment. The bank explained
that, in conformance with federal law, it maintained records
for seven years and was at that point—nineteen years
from the date of issuance—unable to locate any
information related to the check.
after, Mr. Bartel filed a complaint against Bank of America
for relief under D.C. Code §§ 28:3-309 and -312
(2015 Supp.)—two statutes that establish the procedures
by which a party can obtain payment of a lost cashier's
check or other ...